Central Administrative Tribunal - Patna
Vijay Lakra vs Epfo on 22 April, 2022
-1- OA/051/00262/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH, RANCHI
OA/051/00262/2020
Reserved on: 23.03.2022
Pronounced on: 22.04.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Vijay Lakra, son of Martin Lakra, aged about 55 years, resident of Village-
Edalhatu Bhitha Road, PO- Edalhatu, PS - Gonda, District- Ranchi, Pin-
844001., Jharkhand
.... Applicant.
By Advocate: - Mr. J.J. Sanga
-Versus-
1. The Union of India through the Secretary, Government of India,
Ministry of Labour and Employment, New Delhi.
2. Chairman, Central Board of Trustee, Employment Provident Fund
Organisation, Ministry of Labour, Government of India, Head Office,
Bhawishya Nidhi Bhawan, 14-Bhikaji Cama Palace, New Delhi, Pin
Code-110066.
3. Provident Fund Commissioner, Employees Provident Fund
Organisation (Ministry of Labour, Government of India, Head Office,
Bhawishya Nidhi Bhawan, 14-Bhikaji Complex, New Delhi, Pin-
110066.
4. Regional Provident Fund Comissioner-1, Employee's Provident
Fund Organization, Government of India, Ministry of Labour and
Employment, Regional Offices, Jharkhand, Bhagirathi Complex,
Near Circuit House, Karam Toli, Ranchi, Pin-834001, Jharkhand.
.... Respondents.
By Advocate(s): - Shri Prashant Pallav.
ORDER
Per S.K. Sinha, A.M:- Instant OA has been preferred challenging the order dated 19.03.2020 (Annexure A/4) by Regional Provident
-2- OA/051/00262/2020 Fund Commissioner-I, Ranchi (Respondent no. 4) giving three months' notice to the applicant, a Senior Social Security Assistant in EPFO, before his compulsory retirement under rule 56(J) of the Fundamental Rules (FR). The applicant has prayed to quash the impugned order and to direct the respondents to re-instate the applicant with all the consequential back wages.
2. Pleadings in the OA shows that the applicant was appointed as Lower Division Clerk in EPFO on 17.02.1994 and was given promotions to the post of Social Security Assistant in 2004 and Senior Social Security Assistant in 2016. A Departmental Proceeding under Rule 10 of Employees Provident Fund Staff (CCA) Rules, 1971 was initiated against him with the memorandum of charge issued on 27.11.2018 (Annexure A/1). The departmental proceeding is still under progress. Meanwhile, the Regional Provident Fund Commissioner - I (Respondent No.4) issued the impugned order on 19.03.2020 (Annexure A/4).
3. The applicant has challenged the order of compulsory retirement (Annexure A/4) claiming that it was punitive in nature and that the respondents had adopted a short cut measure to evade the ongoing departmental proceeding. Applicant claims that he had submitted written defense to the charge memorandum and has been participating in the departmental proceeding as instructed by the Inquiry Officer. The departmental proceeding is under progress and
-3- OA/051/00262/2020 the respondents have sufficient time to conclude the same before his retirement. Applicant has pleaded that the respondents should have waited for completion of the proceeding rather than taking recourse of FR 56(J). Applicant has also contested the validity of impugned order for violation of the principles of natural justice. It has been further averred by the applicant that the order for compulsory retirement was issued in contravention of the judgements and guidelines issued by Hon'ble Supreme Court in State of Gujarat Vs. Umedbhai M. Patel (Annexure-5) and also against the instructions of DoP&T that compulsory retirement should not be imposed as a punitive measure.
4. Contesting the OA, respondents filed written statement maintaining that the notice for compulsory retirement of applicant was issued under rule 56(J) of the Fundamental Rules following the due process of law. The order was not a short cut to the departmental proceeding because the compulsory retirement under 56(J) of the FR and departmental proceeding under the EPF Staff (CC&A), Rules, 1971 were separate and independent process, which could be pursued simultaneously. The respondents pleaded that the departmental proceeding against the applicant would not come to an end, it would rather continue under Rule 9 of the CCS(Pension) Rules after the applicant's retirement.
-4- OA/051/00262/2020 4.1 Respondents further averred that that the provisions of Fundamental Rules-56(J) and Rules-48 of CCS(Pension) Rules, 1972 were applicable upon the employees of the Central Board of Trustees, EPF. Respondents maintained that Screening Committee of EPFO had considered the case of applicant in its meeting for strengthening of administration on 13.01.2020. After assessing the applicant's service profile, the Screening Committee noted (a) that the applicant had a track record of habitually keeping the work pending and creating hurdles in providing even modicum of services to the subscribers/pensioners; (b) that a departmental proceeding against the applicant was under progress; (c) that the applicant was awarded a penalty of withholding two increments with non- cumulative effect in 2013; (d) that the comments of superior authority in his APAR for 2018-19 shows that he was not able to work on computer and (e) that he was also prime accused in a case of fraudulent payment lodged by Ranchi CBI, ACB on 08.07.2019. Taking these facts into account, the Screening Committee found that the applicant had outlived his utility to the Organization and his continuation in service will not be in public interest. The Review Committee, after examining the minutes of Screening Committee recommended for compulsory retirement of the applicant under FR 56(J) and Respondent No. 4 in exercise of powers conferred under FR 56(J), as the competent authority, issued three months' notice to the applicant for compulsory retirement. .
-5- OA/051/00262/2020 4.2 The respondents averred that their action was in agreement
with various judgements of Hon'ble Supreme Court and cited the cases of (i) Baikunth Nath Das Vs. Chief District Medical Officer, Baripara and anr. [(1992) 2 SCC 299], (ii) Allahabad Bank Officers Association Vs. Allahabad Bank and others [(1996) 4 SCC 504], (iii) Union of India Vs. Dulal Dutt [(1993) 2 SCC 179], (iv) State of UP and another Vs. Abhai Kishore Masta [(1995)1 SCC 366] and, (v) State of Gujarat Vs. Umedbhai Patel [(2001) 3 SCC 314] in this regard.
5. In rejoinder, the applicant contested the averment of respondents in WS that it was reflected in his APAR of 2018-19 that he cannot work on computer. The applicant mentioned that he had participated and qualified in an examination to test the knowledge and speed on computer conducted by the respondents. The decision to retire the applicant after three months' notice was not in view of public interest but by way of punishment and same cannot be sustained in the eyes of law.
6. After admission, we heard the rival counsel and considered their submissions and materials on record.
7. Sh J J Sanga, learned counsel for applicant reiterated the submissions in the OA and the Rejoinder that the impugned order for compulsory retirement was in the nature of punishment which the respondents had passed in haste without waiting for the outcome of the ongoing departmental proceeding against the applicant. He
-6- OA/051/00262/2020 referred to the judgment of Hon'ble Supreme court in State of Gujarat Vs. Umedbhai M. Patel (Annexure-5) and also the instructions of DoP&T dated 11.09.2015 that compulsory retirement should not be imposed as a punitive measure. Learned counsel also referred to the APAR of applicant for 2018-19 which was considered by the Screening Committee. Learned counsel submitted that the applicant was granted overall score of 4 by both, the Reporting Officer and the Reviewing Officer and a score of 4, as per the DoPT guidelines represents 'Good'. Further, the Reporting Officer and Reviewing Officer, in their separate 'pen-picture' had mentioned that the applicant was not able to work on computer. Ld. counsel argued that the applicant had cleared the test for knowledge and speed in computer handling which falsifies the comments about his inability to work on computer. L/C averred that the order of compulsory retirement was without due consideration of facts and passed as a punitive measure and hence, needed to be set aside.
8. During hearing, the respondents preferred one MA (No. 051/00175/2021) to bring some additional documents namely (a) copy of minutes of the Screening Committee dated 13.01.2020, (b) applicant's APAR for 2019-19, (c) copy of minutes of the Review Committee dated 30.01.2020, (d) copy of the Memo dated 12.06.2020, and (e) copy of Order sheet dated 03.02.2020 on record.
-7- OA/051/00262/2020 The documents were taken on record with the consent of the counsel for applicant.
9 L/C for respondents reiterated the submissions in the Written Statement that the order for compulsory retirement was not a punishment and that the departmental proceeding and the exercise for compulsory retirement were independent processes. The departmental proceeding would not come to an end after the compulsory retirement of the applicant, it would rather continue under rule 9 of the CCS(Pension) Rules. The applicant had been retired compulsorily under rule 56(J) of the Fundamental Rules after following the due process. The purpose of FR 56(J) is to weed out the dead wood whose continuation in Government service is no longer in public interest. L/C for respondents referred to the judgments of Hon'ble Supreme Court in the cases of Union of India vs M E Reddy [(1980) 2 SCC 15], Baldev Raj Chadha v Union of India [(1980 4SCC 321], State of Gujarat v. Umedbhai M. Patel [(2001) 3 SCC 314] and S Ramachandra Raju v. State of Orissa [1994 Supp (3) SCC 424] in support of legal and Constitutional validity of the respondents' decision.
10. The applicant has been issued the order of compulsory retirement under rule 56(J) of the FR. The rule reads as under.
"56(j): Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Government servant by giving
-8- OA/051/00262/2020 him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty-five years after he has attained the age of fifty-years.
(ii) In any other case after he has attained the age of fifty-five years."
Bare reading of the rule suggests that it provides absolute right to the appropriate authority to retire any Government servant. On the other hand, the applicant has challenged the order of his compulsory retirement stating it was in the form of punishment to evade the departmental proceeding and not in the public interest. The counsel for respondents has argued that the applicant has been retired in accordance with law following the due process and Government has been given absolute right under FR 56(J)in this regard.
11. Thus, the issue immediately before us is whether an order passed by the appropriate authority under FR 56(J) can be subject to judicial review. The subject has been dealt in detail by Hon'ble Supreme Court in Baldev Raj Chadha vs Union of India supra. Relevant extract of the order is reproduced as under.
"8. .............. When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of 'public interest' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well-known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that
-9- OA/051/00262/2020 the compulsory retirement of the officer concerned is necessary in public interest."
12. In terms of the above observation, Hon'ble Apex Court permits examination of material by a Court to see whether the order of compulsory retirement of the officer is necessary in public interest. The order requires that the material relied upon by the competent authority in deciding the compulsory retirement of an official should be sufficient to sustain the grounds of public interest 'to a reasonable man reasonably instructed in the law'.
13. Hon'ble Supreme Court in the case of Union of India vs M E Reddy [(1980) 2 SCC 15] involving the issue of compulsory retirement of an IPS officer of Andhra Pradesh Cadre under Rule 16(3) of the All India Services (death-cum-Retirement) Rules, 1958 held that a Court can examine the validity of an order of compulsory retirement on the test of public interest. The relevant observation reads as under.
"10. Apart from the aforesaid considerations we would like to illustrate the jurisprudential philosophy of rule 16 (3) and other similarly worded provisions like Rule 56 (j) and other rule relating to the Government servants. It cannot be doubted that rule 16 (3) as it stands is but one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311. If the order of retirement under rule 16 (3) does not attract Article 311 (2) it is manifest that no stigma of punishment is involved. The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice as indicated above. The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule. Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or made it can always be struck down. While examining this aspect of the matter the Court would have to act only on the affidavits, documents, annexures, notifications and other papers produced before it by the parties. It cannot delve deep into the confidential or secret records of the Government to fish out materials to
-10- OA/051/00262/2020 prove that the order is arbitrary or mala fide. The Court has, however, the undoubted power subject to any privilege or claim that may be made by the State, to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence."
14. Further, in the case State of Gujarat Vs. Umedbhai M. Patel, [(2001) 3 SCC 314 ], Hon'ble Supreme Court settled the law relating compulsory retirement by enunciating principles as follows.
"11. The law relating to compulsory retirement has now crystallized into definite principles , which could be broadly summarized thus :
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) "For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer."
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid Departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
15. With above observations of Hon'ble Supreme Court, the law seems settled that an order of compulsory retirement can be examined by a Court (or Tribunal) on the issue whether the material relied upon by the competent authority was sufficient to sustain the ground of public interest for compulsory retirement of the official.
-11- OA/051/00262/2020 The points for consideration have been further elaborated in terms of the 'definite principles' pronounced in Umedbhai M Patel supra.
16. The object of compulsory retirement under Rule FR 56(J) is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful. Hon'ble Supreme Court in Union of India vs Col J N Sinha [ (1970) 2 SCC 458] held as under:-
"There is no denying that the fact that in all organizations, and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(J) holds the balance between the rights of the individual government servant and the interest of the public. While a minimum service is guaranteed to the government servant, the government is given power to energize its machinery and make it more efficient by compulsorily retiring those who is in its opinion should not be there in public interest. "
17. The applicant has raised the issue of violation of natural justice that no opportunity was given to him before the issuance of impugned order. In J N Sinha case supra Hon'ble Supreme Court supported the view that the rules of natural justice are not embodied in exercising the power under Rule 56(J) of the Fundamental Rules and that no opportunity should be given to the government servant concerned before exercising the power of compulsory retirement.
18. In Baikuntha Nath Das vs Chief District Medical Officer [(1992) 2 SCC 299], Hon'ble Apex Court in its judgement held [para 34 (iii)] that principles of natural justice have no place in the context of an order of compulsory retirement. Hon'ble Court further held that the judicial scrutiny of an order of compulsory retirement was
-12- OA/051/00262/2020 permitted if the Court is satisfied that the order is passed (a) malafide, (b) based on no evidence, or (c) arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material.
19. Keeping above principles in view, we now advert to the facts of this case. The applicant has claimed at para 4.2 of the OA that he was promoted in the year 2004 to the post of Social Security Assistant and in the year 2016 to the post of Senior Social Security Assistant. In the written statement, respondents have not controverted the claim. One of the settled principles of law on compulsory retirement pronounced by Hon'ble Supreme Court in the case of Umedbhai M. Patel supra and circulated by DoPT vide their OM dated 11.09.2015 [para 14 (vii) above)] is that "if the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer". The question that begs an answer here is that if the applicant was granted promotion in 2016 to the post of Senior Social Security Assistant, how in just three years he lost complete utility to the organization and his continuation was no longer in public interest. The minutes of Screening Committee is silent on his promotion to the post of Senior Social Security Assistant in 2016.
20. Minutes of the Screening Committee also shows that applicant's APARs for last five years were considered but the committee found adverse entry only in the APAR for 2018-19. There is no comment whatsoever in the Screening Committee minutes on
-13- OA/051/00262/2020 the APARs of remaining four years. It is worth mentioning that since the applicant was granted promotion in 2016, his APARs must have been taken into consideration and found to meet the benchmark for promotion at that time. Hence, we are inclined to believe that there was no adverse remark in the APARs of remaining four years.
21. The applicant was awarded a penalty of withholding two increments with non-cumulative effect in 2013. His promotion in the year 2016 suggests that his performance either improved after the punishment in 2013 or at least his utility to the organization was not on continued decline since 2013.
22. Going through the Screening Committee minutes, we find that except the punishment awarded to the applicant in 2013, all other events/facts constituting the ground for compulsory retirement are of the year 2018-19. The adverse entry in the APAR is for the period 2018-19, the ongoing departmental proceeding was initiated against him in November 2018, and the cases of fraudulent payment for which CBI case was registered was of the year 2019. It is settled principles of law on compulsory retirement (para 14) that "for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer." The departmental proceeding(s) and the CBI case(s) registered against the applicant in 2018-19 constitute three of the total five grounds mentioned in the Screening Committee minutes. Other two grounds are the APAR for 2018-19 and the punishment awarded in 2013. The departmental
-14- OA/051/00262/2020 proceeding and CBI case are still under inquiry/investigation and the complicity of the applicant in these has yet not been established. We fail to see how the test of public interest would be sustained by the compulsory retirement of the applicant if his involvement in the departmental proceeding or the criminal case are subsequently not established. The Rules provide no remedy against an order of compulsory retirement if the material which formed the basis of the order are subsequently falsified or annulled. The settled law in this regard as defined in Umedbhai Patel supra requires that the order of compulsory retirement shall not be passed as a short cut to avoid Departmental enquiry when such course is more desirable.
23. The applicant's APAR of 2018-19 has two adverse features, (a) an overall score of 4 and (b) comments about applicant's inability to work on computer. The L/c for applicant has submitted that as per DoPT guidelines score of '4' to '6' is to be treated as 'Good'. L/c also argued that the applicant cleared the examination and test on knowledge of computer and speed of working. In the rejoinder, applicant has submitted that he has been made prime accused in a CBI case involving fraudulent payment to 88 outgoing members of M/S Reliance Fire Bricks and Pottery Limited, and all these entries were in the computer. The applicant has argued that if the entries in computer were made by him then he has some knowledge of computer working.
Without going into the counter claims on the entries in APAR, we hold that knowledge of computer is vital for office work, more so
-15- OA/051/00262/2020 in an organization like EPFO. If the applicant had no knowledge of computer, it would have been reflected in his earlier performance, but there is no material in support of that.
24. Hon'ble Supreme Court in Baldev Raj Chadha supra has warned against excessive reliance upon confidential reports. Relevant observation reads as under:-
"9. ......... It is in public interest to retire a never-do-well, but to juggle with confidential reports when a man's career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision- making. ......."
25. At this stage, a question also arises whether an action under Rule FR 56(J) on the basis of material covering events/entries of just one or two years, albeit the latest ones, can be justified on the grounds of public interest and utility to the organization, when one of the settled principles (para 14) require that entire service records should be considered.
26. It is trite to say that each case of delinquency should be dealt expeditiously by the organization in accordance with the rules. But initiating action under FR 56(J) on the ground of alleged acts of delinquency amounts to punishing a person without proving the charge. Without going into the circumstances which might have led to the issuance of impugned order, we feel it would be in the interest of justice that the competent authority decides the penalty for the
-16- OA/051/00262/2020 alleged acts of delinquency after holding the departmental proceeding.
27. Considering the above discussions, we find that the appropriate authority did not take into consideration the entire service record of the applicant, especially the promotion granted in 2016; the APARs of other four years which were examined; and the pending status of the departmental proceedings and criminal cases in deciding compulsory retirement of the applicant.
28. Considering the facts and legal aspects discussed above, we are inclined to hold that the grounds on which the impugned order was issued are not legally sustainable to justify the grounds of 'public interest' and hence the impugned order is not in accordance with the law. Being against the law, the impugned order deserves to be quashed and set aside. Accordingly, the order of compulsory retirement of the applicant vide impugned order (Annexure A/4) is quashed and set aside. Respondents are directed to re-instate the applicant in service from the date of compulsory retirement and to issue order to this effect promptly.
29. OA stands allowed. No cost.
Sd/- sd/- [Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.